Property clinic: trespass

We solve your property problems. This week: trespassers, comparative pricing and greenbelt land

Points of Law

Trespassers will be chopped

My garden backs on to another in which, right on the border, two enormous fir trees are growing. The trees are a nuisance: the roots of one are growing into my garden and have broken a wall just inside the boundary. They are also pushing up a concrete base on which a greenhouse stands. I believe I am entitled to cut these roots but what would be the position if, in high winds, the tree fell down and caused damage to my neighbour's property?

David Fleming writes: You are right in saying that you are entitled to cut the roots of the tree as it is trespassing on to your land. Moreover, you could bring an action for damages against your neighbour to cover any damage to your greenhouse and its base.

It is an interesting question whether you might have any liability should the trees blow down as a result of your action. I am not aware of any decided cases on this point. Certainly, in other areas the law of negligence does impose liability on property owners who injure trespassers.

You should write to your neighbour telling him that you are going to cut the encroaching roots, advising him that this might make the tree unstable and suggesting that he engage a tree surgeon to make it safe. If you did this, I do not believe you would incur any liability in the event of the tree falling down.

David Fleming is head of the property litigation department at William Heath & Co.

The Market

Sunnier side of the street

I own a four-bedroom, terrace house designed by Charles Voysey in 1905 which is Grade II listed. Each house in the terrace has central heating, a garage, cottage garden at the front, walled garden at the rear and approximately a quarter of an acre of garden behind the house. The current value of these houses is £120,000, yet a new, three-bedroom terrace house in the village which is one third the size of ours is on the market for £137,000. Can you explain why this is and what the residents can do to increase the value of these special homes?

Lorna Vestey writes: How very lucky you are to own a special and spacious house, however much it is worth. Obviously, the value of a property depends on many factors; architecture, size and the arrangement of the accommodation, together with condition and outside space are all-important.

Without more information, it is impossible to say which is more relevant in this case. However, you will have heard the old mantra "location, location, location" and it is true that this is the most influential factor. Not only are some areas more sought-after than others, but even one end of a road can be seen as more desirable than the other - because of quieter or more attractive surroundings, or some other reason.

It is the level of demand compared with the level of supply which determines relative values. Maybe the exact location of your terrace is less than perfect? Moreover, some places are ideal for family homes, others may attract young couples or singles. The art of putting the right type of property in a particular location is all part of a developer's expertise. Additionally, there is always a premium to be paid when buying a brand new property, so it would be normal for the new house you describe to sell for more than its older equivalent in a similar location.

Sometimes, the cachet of interesting or historic architecture can be negated by the perceived inconvenience of living in a listed building, because of the possible difficulties in obtaining permission to make alterations. This can apply particularly if properties lack the larger kitchens and more numerous bathrooms valued by families today. Changed lifestyles require different accommodation from that considered ideal a century ago and architectural styles can go in and out of fashion.

You will need to tap local expertise on what you and your neighbours can do to increase the value of your homes, so talk to the best two or three local agents. In many areas of the country such Voysey houses would be worth at least five times as much, unless there is a major disadvantage which you have not mentioned.

If you have a main road outside your front door, there will be little you can do, but if you need to make alterations then it may be worth you all clubbing together to engage architects who specialise in listed building work. They will know how to address your problems while respecting the architecture and can negotiate with English Heritage for listed building consent.

Lorna Vestey is a former partner of a blue-chip London estate agency.

Money Matters

Greenbelt goldmine

Twenty-five years ago, I inherited a half share of an acre of greenbelt land with a nominal value of £500 for probate. It now appears that developers can get planning permission, together with surrounding land (not mine). The half acre now has a projected value of £200,000. I would appreciate your advice on how best to minimise any tax that will be involved. I am a non-taxpayer with married pension plus savings.

Maggie Fleming writes: Whatever you do, you are going to face a large Capital Gains Tax (CGT) bill. The best thing to do is to gift a half share in the land to your spouse. In this way, you can make use of two annual exemptions (currently £7,900 per person) and two basic rate bands.

You will also need to have the land valued as at 31 March 1982. If its value at that date was more than £500, you can substitute that higher value in the tax calculation, thus reducing the gain. You should explain to the valuer that the valuation is required for CGT purposes. Most assets benefit from this "rebasing" at March 1982 value but land is often the exception, as there was something of a slump at that time - you need to investigate this matter, however. The valuation you propose will need to be negotiated with the District Valuer.

The usual reliefs apply - indexation allowance up to March 1998 and taper relief thereafter. As the base cost is likely to be low, the indexation is unlikely to be substantial. Taper relief will be much more useful, as it will reduce the gain by 20 per cent. However, after all reliefs and allowances have been given, you and your spouse will still have a substantial gain.

Maggie Fleming is a director of Isis Financial Planners and a member of the Chartered Institute of Taxation.

Our experts regret that they cannot answer readers' letters personally. All correspondence should be sent to them at the address below. We regret that we cannot acknowledge letters. Please keep them brief.